Jameson Rushwaya and Annie Rushwaya v Swimming Pool and Underwater Repair (Pvt) Ltd

### Preamble
1
HH 133-24
HCH 6178/23
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JAMESON RUSHWAYA

and

ANNIE RUSHWAYA

versus

SWIMMING POOL AND UNDERWATER REPAIR (PVT) LTD

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 5 & 27 March 2024

Opposed Application

P Chitsa with him V Masvaya, for the applicants’

T Nyamasoka, for the respondent

ZHOU J:    This judgment is in respect of two applications which were heard together.  The two applications are between the same parties.  Case number HCH 6178/23 is an application for condonation of late filing of an application for rescission of a default judgment that was granted against the applicants in case number HC 280/18. The second application, HCH 6602/23, is the application for rescission of judgment to which the condonation being sought in HCH 6178/23 relates.  The two applications were filed on different dates.  The condonation application was filed first.  The parties are the same in both cases.  Also, the facts relied upon are materially the same.

The two applications were set down for hearing before me on the same day.  Having looked at the papers, I directed that the two be heard together as the substance of the arguments was essentially based on the same facts.  The composite adjudication of the two matters is a permissible course of action, see Read v Gardner & Anor 2019 (3) ZLR 575 (S) at 581G.

Both applications are opposed by the respondent.

The judgment to which the two applications relate was granted in default of the applicants in case number HC 280/18 on 28 February 2018.  It is common cause that the applicants filed an earlier application for condonation under case number HC 118/20.  The respondents filed opposing papers in that application together with a counter application for a decree of perpetual silence.  The application in case number HC 118/20 was dismissed for want of prosecution and the counter application for a decree of perpetual silence was also given in default of the applicants.  The order for dismissal was granted pursuant to the application in case number HC 1963/20.

In light of the decree of perpetual silence the applicants could no longer approach the court, hence they made an application under case number HC 7219/22 for the setting aside of the order of perpetual silence.  An order rescinding the decree of perpetual silence was granted on 8 August 2023.  The condonation applications was filed on 27 September 2023.

In opposing the application for condonation, the respondent points to the applicants’ previous attempts which were unsuccessful following dismissal of their application for want of prosecution.

The factors which the court takes into account in considering an application for condonation are the degree of non-compliance with the rules, the explanation therefor, the prospects of success on the merits, the importance of the case, the convenience of the court, and the avoidance of unnecessary delay in the administration of justice. These factors are not considered individually but together, each being weighed in relation to the others, and with the application as a whole.  See Bishi v Secretary for Education 1989 (2) ZLR 240 (HC) at 243A-C.  Further, the court has a discretion as to whether or not condonation must be granted, which discretion must be exercised judicially upon a consideration of all the facts and circumstances of the case, including consideration of the facts referred to above, United Plant Hire (Pty) Ltd v Hills & Ors 1976 (1) SA 717 at 720F.

In casu, the degree of non-compliance with the rules is quite considerable.  The application for condonation was filed some five years after the granting of the default judgment.  It has been held that where there is a delay in making an application for condonation the applicant must also explain that delay, See Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S) at 251D and 253C-D; Saloojee & Anor NNO v Minister of Community Development 1965 (2) SA 135 (A) at 138H; CIR v Burger 1956 (4) SA 446(A) at 449F-G.

The applicants have candidly explained the cause of the delay in instituting the condonation application. There is a multiplicity of litigation between the parties. On the other hand, the applicants encountered litigation from other quarters, including some which resulted in a decree of civil imprisonment being granted.  In that maze of litigation resources were lost and depleted, and even resulted in them losing their place of residence and other immovable properties.  Applicants state that their circumstances reduced them to destitution and in the process they lost the capacity to fight the cases in which they were involved and, also, lost communication with their legal practitioners. This is what made them fail to prosecute the first application for condonation and to defend the counter application for a decree of perpetual silence.  When they recovered they were confronted with the decree of perpetual silence that they had to surmount before they could properly institute the instant application. Clearly, the applicants have always evinced an intention to protect their interests. The circumstances explained, in my view, constitute a reasonable explanation for the delay. The applicants have not attempted to conceal the fact that the primary cause of their disability to prosecute their cases was the multiplicity of litigation which financially drained them thereby incapacitating them from handling litigation.

As regards the prospects of success, the court does not have to be convinced that the applicants will or should succeed on the merits. The court must be satisfied only that their case has substance, that it is not a predictable failure.  At the centre of the dispute between the parties is a mine which the applicants claim entitlement to. Applicants state, and present documents in support, that they were or are directors and shareholders of a company known as Tolrose Investments (Pvt) Ltd which owns Glencairn Mine from which they were evicted.  They allege a forgery of company documents which resulted in their ouster. These are matters that require ventilation in a proper trial. Their case therefore has prospects of success which prospects of success are also relevant in the application for rescission of judgment.

This is no doubt a matter of importance not just to the applicants but equally to the respondents judging by the amount of litigation that the dispute has generated.  Also, what is at stake is the applicants’ livelihood as alleged in their papers. This is not therefore a trivial dispute.

The court will not be prejudiced or inconvenienced in any way if the applicants are given an opportunity to present their case for the rescission of the default judgment.  The principle finality in litigation would be better upheld if the parties are given the opportunity to debate the matter on the merits.

For the reasons discussed, this is an appropriate case for the court to exercise its discretion in favour of the applicants by granting condonation.

As regards the application for rescission of judgment, case number HCH 6602/23, the application is being made in terms of r 29 of the High Court Rules, 2021 SI 2020 of 2021.  This is stated on the face of the application but also in the founding affidavit, para 5 thereof and the heads of argument. However, a reading of para 7 of the applicants shows reference to facts which explain their default in a manner that could equally place the matter within the ambit of r 27.  It boggles the mind why the application was then not made in terms of that rule because clearly the default was due to a mistaken interpretation of the rules of court.  Clearly, whoever prepared the papers did not properly apply their mind to the case, and it is that kind of approach to litigation by legal practitioners that results in unnecessary defaults and a multiplicity of cases all of which are at the expense of the litigants themselves.

Rule 29(1) of the rules provides as follows:

“The court or a judge may in addition to any other powers it or he or she may have, on its own 	initiative or upon the application of any affected party, correct rescind or vary –

(a)	an order or judgment erroneously sought or erroneously granted in the absence of any party 		affected thereby ……

(b)	……

(c)	an order or judgment granted as a result of a mistake common to the parties.”

The authorities seem to suggest that for the purposes of r 29 the nature of the error that can justify the setting aside of a judgment is limited to an error made by the court, see Tiriboyi v Jami & Anor 2004 (1) ZLR 470 (H).  However, the reference to “erroneously sought” in r 29(1)(a) means that even an error that may have emanated from a litigant who sought the judgment may justify the setting aside of the order if the court did not pick the error when it granted the judgment.  Thus, where there had been an entry of appearance to defend which did not come to the attention of the court when it granted a default judgment, the judgment was rescinded on the ground that there had been an error, see Banda v Pitluk 1993 (2) ZLR 60 (H).  It has also been held that where the trial judge was unaware of relevant facts a court to which application for rescission of judgment is made is not confirmed to the record of the previous proceedings, Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (S).

The errors referred to and relied upon by the applicants pertain to the failure by the respondent to disclose the existence of the judgment granted in case number SC 181/12 which is judgment number SC 32/12, the seeking of a mandament van spolie through a provisional order that was subsequently confirmed, and alleged reliance on forged or fraudulently obtained documents to gain control of the company that is at the centre of the dispute. The second point, one that pertains to the procedure used to obtain the mandament van spolie is an issue of law which this court cannot revisit.  It pertains to the correctness of the procedure used and is not the type of error that is contemplated by the rules.

In the judgment, SC 32/12, Chidyausiku CJ made certain factual findings.  In particular, he found that the applicants were shareholders of the company that controlled the mine in dispute and that their presence at the mine did not constitute an act of spoliation.  These conclusions have a bearing on the matter which resulted in the default judgment in HC 280/18.  If the court was not informed of the existence of this judgment then, in my view, the judgment was erroneously granted.  On this basis alone, the applicants have established the existence of facts which would have been unknown to the court when the judgment in HC 280/18 was granted.

If the judgment in HC 280/18 was predicated upon company documents which excluded the applicants from control of the company then the allegations of forgery and fraud certainly warrant investigation and cannot be dismissed out of hand. A judgment granted based on fraudulently obtained papers would qualify as one granted in error. This factor too is one that would justify the setting aside of the judgment even though, admittedly, this court cannot make a factual finding of fraud or forgery on the papers.

In the circumstances, this is an appropriate case for the court to set aside the judgment in HC 280/18.

In the result, IT IS ORDERED THAT:

1.	The application for condonation in HCH 6178/23 is granted, and the late filing of the 			application in HCH 6602/23 be and is hereby condoned.

2.	The application for rescission of judgment filed under case number HCH 6602/23 			is granted.

3.	The judgment granted in case number HC 280/18 be and is hereby set aside.

4. 	The applicants are given leave to file their opposing papers in HC 280/18 within 			ten days from the date of this order.

5.	Costs are to be in the cause in case number HC 280/18.

Chitsa & Masvaya Law Chambers, applicants’ legal practitioners

Atherstone & Cook, respondent’s lega5454rl practitioners